Copyright and Facebook
Have you used Facebook to break the law? Probably.
Your slippery descent into the criminal underworld starts so innocently. Post a funny video. Share a good song. Upload a comic found on another site. These are all everyday Facebook activities. They may also be copyright law violations.
Most people have a hazy understanding of what copyright is. A very simplified definition of copyright is: if you made it, you own it. Copyright protection in the United States exists automatically from the moment the original work of authorship is fixed in a tangible form of expression (17 U.S.C. 302(a)). This protection lasts, generally, for the life of the author plus 70 years (Id.). During this time period, the owner has the exclusive right to reproduce, prepare derivative works, distribute copies, and perform or display the work publicly (17 U.S.C. 106). This makes sense. If you wrote a book, someone else can’t come along, slap their name on the front and then start selling that book. However, when we move into the world of the internet, things quickly become much more complicated.
Most people aren’t trying to break the law when they re-post a funny cat video on Facebook. Unfortunately, they probably are. Someone else filmed that video. Therefore, someone else authored that video and probably fixed it in a tangible form of expression by recording it. This means that the cat video could be covered by copyright. Posting that video is reproducing and distributing that work. Those are things that only the owner can do.
But wait, you may be thinking, I credited that the video was from a specific link. Or, I included a disclaimer stating that I don’t mean to violate copyright. Or, I didn’t make any money off posting that video. Or, I only posted content that was already widely available online. Don’t any of these protect me from copyright? Probably not. There are some exceptions to copyright under the doctrine of fair use. However, that is a complicated and fact-specific doctrine. As even Facebook acknowledges in their copyright guidelines: “The best way to help make sure that what you post to Facebook doesn’t violate copyright law is to only post content that you’ve created yourself.” (https://www.facebook.com/help/1020633957973118/).
Despite apparent rampant copyright violation on Facebook, there is very little punishment for it. That’s because Facebook doesn’t police the hosted content. Facebook puts the burden on the copyright owner to police their own work. They offer a form for the copyright owner to submit to Facebook if they think that someone is using their copyrighted work. But it’s up to the owner to find the infringing content. For videos, Facebook does offer technology called Audible Magic and Rights Manager that allows content owners to fingerprint or maintain a reference library of their content. If a video matches the copyrighted work, the owner can block or monetize the infringing video. For all other content creators, Facebook provides no way to detect and police copyright infringement.
Facebook’s laissez-faire attitude towards copyright has been rebuked in Europe. In September 2018, the European Parliament approved of changes to digital copyright rules in order to better protect content creators. The Parliament voted to make web platforms such as Facebook liable for copyright violations that occur when users upload copyrighted content. These new rules would mandate that the platforms prevent users from uploading unlicensed protected material in this first place. (https://www.washingtonpost.com/technology/2018/09/12/eu-just-voted-advance-digital-copyright-rules-that-would-force-google-facebook-others-pay-up/?utm_term=.7c9e27e7edf5) These rules force Facebook to detect and police copyright infringement in all of the content uploaded to the site.
Facebook can provide a great venue to get more attention for content. It’s a fast and easy way to share photos, videos, and music. Posting material takes a risk. Facebook won’t police other users who may distribute and reproduce your work without your permission. And Facebook itself will help themselves to your work. Many creators are surprised to find that Facebook’s Terms and Conditions state that when you post content to the site: “you grant us a non-exclusive, transferable, sub-licensable, royalty-free, and worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content.” (https://www.facebook.com/terms.php). So, for content creators, carefully consider the consequences before you post your work.
Many readers may now be worried about their Facebook habit breaking the law. This is a complicated area of law with few clear guidelines from the courts or statute. Arguably, once a content creator posts content to Facebook, they grant an implied license to others to share the material on Facebook. An argument could also be made that if you only post a link with a thumbnail that it falls under fair use as articulated in Perfect 10, Inc. v. Amazon.com, regarding Google Image search results. And an argument could be made that Facebook grants a sub-license to all users. To protect your Facebook use, consider the following ways to reduce the likelihood that you will be pursued for infringement. Check the original content source for copyright notices or information about how the content may be used. Get the permission of the original creator. Post a link to the original source of the content, rather than posting the content directly on Facebook. The only fail-safe way to avoid any likelihood of copyright infringement is to only post and share content that has been licensed for such use or content that you created.
